Opinion
No. CV07 5008757 S
September 4, 2009
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #143 148
The co-defendant, Little Pond Developers, LLC, ("Little Pond") has filed a motion for summary judgment (#143) dated February 24, 2009. A second co-defendant, Joe Smith d/b/a Deer Creek Development ("Smith"), has also filed a similar motion for summary judgment (#147), dated March 5, 2009. In motion #143, the defendant Little Pond states that it joins in the motion for summary judgment previously filed by a third co-defendant Michael Saley d/b/a Michael Saley Construction and incorporates by reference the "arguments, exhibits and affidavit of Michael Saley filed on December 11, 2008." (Motion for Summary Judgment # 136.) In Smith's motion for summary judgment, he "references both co-defendants' motions for summary judgment." Further, Smith "adopts the memorandum and supporting affidavits of the co-defendants for the present motion." Smith also supplements these materials with his own memorandum of law, which generally adopts the same arguments as the co-defendants Saley and Little Pond.
The motion for summary judgment (#136) filed by Saley was denied by this court.
The plaintiffs have brought this action alleging that on June 21, 2005, the plaintiffs were working on a scaffold erected on the subject premises, when the scaffold collapsed, causing the plaintiffs to fall to the ground and sustain personal injuries. The plaintiffs have alleged negligence as to each of the three co-defendants, Little Pond, Smith and Saley.
The named plaintiffs are Nelson Turcios, Pablo Zeron, and Clare Serria.
The plaintiffs allege that they were retained as subcontractors to install roofing at the subject job site where a new three story home was being constructed. The scaffolding that collapsed was erected by the plaintiffs, who had arrived at the site earlier on the date in question. The defendant Saley was the general contractor for the project and Little Pond was the owner of the subject land.
As to Little Pond, the plaintiffs allege that Little Pond, as owner of the property, owed the plaintiffs a duty to use reasonable care in the maintenance and control of the property. The plaintiffs allege that Little Pond is liable to the plaintiffs on the basis of negligence, in: (1) creating a dangerous and hazardous condition on the premises; (2) failing to warn of said dangerous and hazardous condition; (3) failing to inspect the premises; and (4) failing to keep the premises reasonably safe for the plaintiffs.
As to the defendant Smith the plaintiffs allege that Smith had notice and knowledge, or with reasonable diligence should have had notice and knowledge of the alleged defective and hazardous condition of the scaffold and failed to remedy the same. The plaintiffs further allege that Smith owed a duty to invitees and workers at the premises to exercise reasonable care in the maintenance and control of the premises. The plaintiffs basically allege that Smith created the conditions leading to the plaintiffs' injuries by failing to inspect the premises and warn the plaintiffs of the prevailing conditions. The plaintiffs claim that Smith failed to remedy the hazardous and defective conditions or take the necessary precautions to protect the plaintiffs.
Similar claims are made by the plaintiffs as to the co-defendant Michael Saley d/b/a Michael Saley Construction.
The defendant Little Pond has responded by arguing that the plaintiffs services were not retained by Little Pond or its general contractor, Saley, and that Little Pond had no knowledge that the plaintiffs were on its premises at the job site. Little Pond argues that the plaintiffs, themselves, constructed the scaffolding which collapsed, and that said collapse occurred shortly after the plaintiffs arrived at the premises, before either Little Pond or its general contractor were even aware the plaintiffs were even on the premises. Little Pond concludes that, as owner of the premises, it cannot be held to a legal duty to inspect and maintain the premises to render the premises reasonably safe from a danger that the plaintiffs, themselves created.
The defendant Smith (Little Creek) notes that Saley was the general contractor, and Little Pond was the owner of the land. Smith argues that he was not involved in the negotiations that led to the roofing contracts being awarded to the plaintiffs or any other roofing contractor. Smith argues that he could not have breached a duty to the plaintiffs to inspect or correct a defect which the plaintiffs created when Smith was "simply a sub-contractor on a job as opposed to the general contractor." Smith concludes that he had no contractual relationship or any relationship with the plaintiffs.
In addition to the various affidavits and documents submitted by the various parties to this action, the defendants in this matter have pointed the court to a report from the Occupational Safety and Health Administration (OSHA) that conducted an investigation into this incident. The defendants argue that the results of this investigation clearly place the blame for this incident on the plaintiffs, who erected the subject scaffolding. The plaintiff Nelson Turcios d/b/a David's Restoration was cited for violations of OSHA regulations. In response the plaintiffs note that OSHA cited Little Pond and Saley, the general contractor for violations, as well, regarding a failure to provide a fall protection system.
All parties cited by OSHA for various violations were assessed penalties consisting of monetary fines.
Standard of Law: Summary Judgment
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no teal issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nomnoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Diclonont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). In the existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287,290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion " Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarly v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Tielardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, "[t]he issue of whether [a] defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).
Discussion
This court addressed similar issues when on April 27, 2009, it denied on the motion for summary judgment filed by the defendant Michael Saley. Saley's motion for summary judgment is dated December 11, 2008, and is designated as document #136. In it's short written decision, the court stated as follows: "There are genuine issues of material fact as to whether the defendant Saley d/b/a Saley Construction retained control of the construction site and, therefore, a duty to maintain safety at the site and retained control of the roofing work." This court then cited as authority, Wright v. Coe Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493 (1968); Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 599, 945 A.2d 388 (2008); Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 54, 946 A.2d 839 (2008). The court has reviewed its cited case authority and finds that it applies to the instant motions for summary judgment, as well.
"The established general rule is that where the owner of premises employs an independent contractor to perform work upon them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work until such time as it has been completed, turned over to and accepted by the owner. After such acceptance, the contractor is ordinarily no longer liable. The rule is also applicable to a subcontractor and a contractor. Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable men could fairly reach different conclusions on the question, the issue should properly go to the jury. (Citations omitted.) Wright v. Coe Anderson, Inc., supra, 156 Conn. 151.
"The premise underlying the general rule that an independent subcontractor is liable for losses resulting from negligence in the performance of its work is that `the assumption and exercise of control over the offending area is deemed to be in the independent contractor. As noted previously, however, an exception to this rule is when the general contractor retains all or partial control over the work to be performed. Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury . . . In addition, the contractors control need not be exclusive; it is sufficient if it be shared with another." (Citation omitted; internal quotation marks omitted) Sordoni/Skanska Construction Co. supra, 286 Conn. 599; see also, Archambault v. Soneco /Northeastern, Inc., supra, 287 Conn. 53-54.
The parties are at odds as to who hired the plaintiffs to undertake the roofing work at the residence under construction at Little Pond's property. The plaintiffs claim that they were contacted by an individual, Anthony Swanson, on behalf of Little Pond and Saley. Upon their arrival at the premises at 8 a.m., the plaintiffs claim that Smith was present and working at the job site. The defendant Saley claims he contacted Swanson to do the roofing work and not the plaintiffs. Saley claims he waited for Swanson at the job site until 9 a.m., but neither Swanson or his crew had arrived. The plaintiffs deny that Saley was at the site when they arrived at 8 a.m. The plaintiffs' argue that Saley's statement that he was waiting for Swanson, supports their contention that Saley, in his capacity as a member/manager of Little Pond, had control and authority over the job site. Plaintiffs claim Saley was waiting for Swanson's roofing crew in order to discuss the project, safety requirements and the work that needed to be done. The question of who had control of the site be it shared or otherwise is a question of fact. Retention of control is a matter of intent to be determined in light of the significant circumstances. Dinnan v. Jozwiakowski, 156 Conn. 432, 435 (1968).
The plaintiffs also argue that Smith's presence at the site in the claimed absence of Saley supports a claim that Smith arguably had control over the project and had a duty to maintain the safety of the construction site. In support of this claim the plaintiffs state that they had worked for Smith on other projects in the past and could presume that Smith had authority and control over the project.
From the information supplied to the court by the various parties, the court is unable to determine which defendant had control of the job site premises or whether control was shared. In fact, it is yet to be determined who hired the plaintiffs for the roofing job. Though the court is certain that the plaintiffs erected the ill-fated scaffolding, the court cannot with certainty say who was responsible for seeing that the job site was safe and that the work was being properly performed by subcontractors, including the plaintiffs. This is especially true in light of the three story height of the residence being constructed and potential for injury. The law as stated in Wright v. Coe Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493 (1968); Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 599, 945 A.2d 388 (2008); Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 54, 946 A.2d 839 (2008) is applicable to the present motions for summary judgment, as it was in the previous motion for summary judgment filed by Saley, which was previously denied by the court. Accordingly, the present motions for summary judgment filed by Little Pond Developers, LLC (#143) and Joe Smith d/b/a Deer Creek Development (#147) are hereby denied.